Last Update: 01 April 2020
This document (the "Agreement") sets out the contract agreed between VERGE CAPITAL LIMITED (hereinafter "Verge", "we", "us", "our", or the "Supplier") and any party ("you", "you", "yours" or the "Customer") which seeks to use Verge's Service, as described in more detail herein. The Agreement details the rights and obligations of both the Supplier and the Customer with respect to relevant services, and by signalling your acceptance of the Agreement (by checking "I agree", "I accept" or otherwise) on a website interface or other platform provided by the Supplier, the Customer undertakes to be bound by the Agreement, including to pay relevant fees, as does the Supplier.
(A) The Supplier is a software company that has specific knowledge of, and experience in delivering services of the nature detailed herein to entities active in the financial services sector.
(B) The Supplier is a company limited by shares, validly incorporated in accordance with the Laws of Ireland with limited liability. The Supplier has been allocated the registration number 630528 by the Registrar of Companies in Ireland and maintains a registered office at 2 Ballymount Road Upper, Dublin 24, Ireland.
(C) The Supplier is the owner and licensor of the Software, which is provided along with certain support as part of the overall Services.
(D) The Supplier has agreed to provide and the Customer has agreed to receive and to pay for the Services subject to the terms and conditions of this Agreement.
1.1 The following definitions and rules of interpretation apply in this Agreement (including in the Recitals).
"Affiliate" means in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time.
"Agreement" means the terms detailed in this document.
"Aggregate Data" means that data which ultimately relates to the financial affairs of a number of the Customer's clients, which is stored on electronic systems maintained by or for the Customer, and to which the Supplier is granted an element of access so as to perform the Services detailed herein.
"Business Day" means a day other than a Saturday, Sunday or public holiday in Republic of Ireland when banks are open for business.
"Charges Notice" means a notice detailing the Fees which the Supplier charges for the Services, as provided by the Supplier to the Customer in accordance with the terms of this Agreement.
"Control" means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and "Controls" and "Controlled" shall be interpreted accordingly.
"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by either of the Parties.
"Data Protection Legislation" means the Data Protection Acts 1988 to 2018, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), and any other applicable law or regulation relating to the Processing of Personal Data and to privacy, including the E-Privacy Directive 2002/58/EC and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 ("E-Privacy Regulations"), as such legislation shall be supplemented, amended, revised or replaced from time to time.
"Effective Date" means the date on which the Customer indicates its acceptance of the Terms of this Agreement.
"Fees" means the fees payable by the Customer to the Supplier, detailed in such Charges Notices as are communicated by the Supplier to the Customer from time to time.
"Intellectual Property Rights" means all intellectual property rights including patents, trade marks, service marks, design rights, copyright, database rights, moral rights (whether or not any of these are registered and including any applications for registration of any such rights), inventions, know how, confidential information and trade secrets, together with all goodwill attaching or relating thereto, and all rights or forms of protection of a similar nature or having similar effect to any of these which may exist or come into existence in the future anywhere in the world.
"Normal Business Hours" means 9:00-17:30 local Irish time, each Business Day.
"PSD2" means Directive 2015/2366/EU, together with any and all transposing, supplementary, and implementing instruments, rules, and/or codes made or in effect from time to time.
"Renewal Period" means the period described in Clause 14.1.
"Services" means the services provided by the Supplier to the Customer under this Agreement as more particularly set out in Clause 3.
"Software" means the electronic system(s), platform(s), and/or programme(s) provided by the Supplier in connection with the Services, as more particularly provided for in Clause 3.
"Parties" means the Customer and the Supplier, each being a "Party" where the context requires.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality), and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule to this Agreement.
2.1 Subject to the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable licence to use the Software for normal operational reasons only for the duration of the term of this Agreement on computer equipment on the Customer's business premises.
2.2 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its/their use of the Software that:
2.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.2.2 facilitates illegal activity;
2.2.3 depicts sexually explicit images;
2.2.4 promotes unlawful violence;
2.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
2nd the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this Clause.
2.3 The Customer shall not, except to the extent expressly permitted under this Agreement:
2.3.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Software (as applicable)] in any form or media or by any means; or
2.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.3.3 access all or any part of the Services and/or Software in order to build a product or service which competes with the Services or Software; or
2.3.4 use the Services and/or the Software to provide services to third parties; or
2.3.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software available to any third party, or
2.3.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Software, other than as provided under this Agreement.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier. The Customer shall restrict access to the Services and/or Software to such servants, agents, officers, and employees as the Customer requires, and shall monitor the activities of the same to ensure no contravention of the terms of this Agreement.
2.5 The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer.
3.1 The Supplier shall, during the period during which this Agreement shall continue in effect, provide the Services to the Customer on and subject to the terms of this Agreement, said services comprising:
3.1.1 Software which permits a Customer to combine, collate, and/or augment such Aggregate Data (including Aggregate Data procured from other parties than the Customer, by or to the order of the Customer) as the Customer directs to allow the Customer display said data in its own systems, programmes, and/or applications as though it originated from a single or uniform source, as updated in (near) real time, and is both received and transmitted in a secure, robust, and traceable manner;
3.1.2 maintenance, updating and development of the Software.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance performed outside Normal Business Hours;
3.2.2 unscheduled maintenance performed during Normal Business Hours where necessary; and
3.2.3 disruption to Services as a result of third-party acts or omissions which disable or otherwise significantly restrict the ability of the Supplier to provide the Services for a short period, such acts or omissions including dedicated denial of service attacks, etc.
3.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier's then current rates.
4. AGGREGATE DATA
4.1 The Parties acknowledge and agree that the Supplier's successfully providing the Services is contingent upon its being provided with reliable, accessible, manipulatable Aggregate Data, which it is entitled to use and rework as detailed in this Agreement. To facilitate such, the Customer represents that it shall own all rights, title and interest in and to all of the Aggregate Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Aggregate Data; or, failing that, it shall have sufficient permissions to use and allow the Supplier use all of the Aggregate Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Aggregate Data. The Customer shall indemnify, and hold harmless, the Supplier for all losses and costs associated with the Supplier's performing the Services with respect to Aggregate Data, to the extent that use by the Supplier is strictly limited to uses necessary to deliver the Services.
4.2 The Supplier shall not take any interest in, own, or otherwise seek to claim rights over the Aggregate Data and the Customer shall own all right, title and interest in and to all of the Aggregate Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Aggregate Data.
4.3 The Parties shall, in providing and receiving the Services, comply with their respective obligations under Data Protection Legislation.
4.4 The Parties record their intention that, for the purposes of the provision and receipt of the Services, in the event that the Supplier is in receipt of personal data, within the meaning of Data Protection Legislation, the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
4.4.1 the Customer shall ensure that the Customer is entitled to transfer the relevant Aggregate Data to the Supplier so that the Supplier may lawfully use, process and transfer (if applicable) the Aggregate Data in accordance with this Agreement on the Customer's behalf;
4.4.2 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable Data Protection Legislation;
4.4.3 each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.5 The Customer acknowledges and agrees that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Aggregate Data. Consequently, the Supplier will not be liable for any claim brought by a data subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer's instructions and/or the transactions contemplated by this Agreement.
4.6 The Customer acknowledges that the Supplier is under no duty to investigate the completeness, accuracy or sufficiency of any Aggregate Data.
4.7 The Customer warrants to the Supplier that, as far as it is aware, the processing of the Aggregate Data under this Agreement will not infringe the data protection rights or Intellectual Property Rights of any third party.
5. THIRD PARTY DATA
5.1 The Supplier does not own any data, information or material that the Customer submits to the Supplier in the course of using the Services ("Received Data"). The Customer, not the Supplier, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Received Data, and the Supplier shall not be responsible or liable for any infringement of Intellectual Property Rights of any third party or for the deletion, correction, destruction, damage, loss or failure to store any Received Data. The Supplier reserves the right to withhold, remove and/or discard Received Data without notice for any breach, including, without limitation, non-payment by the Customer. Upon termination for cause, the Customer's right to access or use Received Data immediately ceases, and the Supplier shall have no obligation to maintain or forward any Received Data.
6. SUPPLIER'S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1. Notwithstanding the foregoing, the Supplier:
6.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will be error free or will meet the Customer's requirements; and
6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This Agreement shall not prevent the Supplier from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products, software and/or services which are similar to those provided under this Agreement.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions required for the performance of its obligations under this Agreement.
6.5 The Supplier discloses, as the Customer acknowledges, that the Supplier is not regulated for the purposes of PSD2 in terms of its providing the Services.
7. CUSTOMER'S OBLIGATIONS
The Customer shall:
7.1 provide the Supplier with:
7.1.1 all Aggregate Data as the Supplier requires to provide its services under this Agreement
7.1.2 all necessary co-operation in relation to this Agreement; and
7.1.3 all necessary access to such information and Customer systems as may be required by the Supplier,
in order to provide the Services, including but not limited to Aggregate Data, security access information, configuration services, and the data processing environment necessary to enable the Supplier to install, operate and maintain the Software and to connect the Software to the cloud for the purposes of providing the Services;
7.2 at all times be authorised, registered, or otherwise permitted to provide payment services, as set out in, and under, PSD2;
7.3 at all times hold a current, valid, applicable eIDAS compliant certificate, as provided for in EU Regulation 910/2014 of 23 July 2014, and shall provide access to such to the Supplier to the extent necessary for the Supplier to provide the Services;
7.4 comply with all applicable laws and regulations with respect to its activities under this Agreement;
7.5 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the Parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the provision of the Services;
7.7 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
7.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Fees to the Supplier for the Services in accordance with this Clause 8.
8.2 The Customer shall pay Fees to the Supplier in the manner, and at the frequency detailed in a Charges Notice, with arrangements varying depending on and service structures agreed.
8.3 All amounts and fees stated or referred to in this Agreement:
8.3.1 shall be payable in Euro;
8.3.2 are, subject to Clause 14, non-cancellable and non-refundable;
8.3.3 are exclusive of value added tax (to the extent applicable).
8.4 Where the Supplier and the Customer have agreed to a means of billing for and paying Fees which involves provision of invoices (and a Charges Notice issues to that effect):
8.4.1 The Supplier shall invoice the Customer on a monthly basis for the Fees payable, as set out in a Charges Notice provided by the Supplier to the Customer, and the Customer shall pay each invoice within 30 days after the date of such invoice.
8.4.2 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier may, without liability to the Customer, disable the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In the event of disconnection, the Customer may be required to pay a reconnection fee as a condition of reactivation of access to the Services in addition to full payment of all amounts due under this Agreement. Further,
8.4.3 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in Ireland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9. PROPRIETARY RIGHTS AND IP
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Software.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9.3 The Customer grants to the Supplier a non-exclusive licence for the term of this Agreement, subject to, and in accordance with, the terms of this Agreement reproduce any and all logos, symbols, and common designs associated with the Customer, including where subject to trademark, copyright, or other protection against infringement (together the "Customer Marks"), whether or not such form part of the Intellectual Property Rights of the Customer, in any business standard advertising or promotional material relating to the Supplier and/or the Services.
9.4 The Supplier acknowledges and agrees that all copyright and rights in the nature of copyright subsisting in any part of the world in any Customer Marks shall vest in the Customer. The Supplier shall:
9.4.1 comply with any reasonable specifications, standards or directions relating to the promotional or advertising material insofar as they concern the Customer Marks where such are notified in writing by the Customer from time to time; and
9.4.2 procure that every place in which a Customer Mark is displayed shall be accompanied by a statement or representation, where applicable, which indicates the protection which such Customer Mark enjoys, e.g. ®™© or otherwise.
9.4.3 immediately notify the Customer in writing giving full particulars if any of the following matters come to its attention:
(a)any actual, suspected or threatened infringement of the Customer Mark(s);
(b)any claim made or threatened that the Customer Mark(s) infringes the rights of any third party; or
(c)any other form of attack, charge or claim to which the Customer Mark may be subject.
9.5 The Customer warrants that:
9.5.1 it is the sole legal and beneficial owner of, and owns all the Customer Marks; or at least has authority to use and grant the Supplier right to use them;
9.5.2 Where the Customer Marks form part of the Intellectual Property Rights of an entity related to the Customer, including part of the same corporate group as the Customer, it has ensured that the Customer as requisite authority and permission to provide the licence detailed in this clause 9; and
9.5.3 it indemnifies the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with its use of the Customer Marks in accordance with the provisions of this Agreement, and such indemnity shall extend beyond the termination of this Agreement.
10.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
10.1.2 was in the other Party's lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
10.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence; or
10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
10.3 Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Supplier acknowledges that the Aggregate Data is the Confidential Information of the Customer.
10.6 This Clause 10 shall survive termination of this Agreement, howsoever arising.
10.7 Either Party shall be entitled to, and shall have the consent of the other Party hereto, to advise any and all third parties, including the public at large and any section thereof, of their having entering into this Agreement, the name and nature of the Parties, and a summary overview of the services of which it relates.
10.8 Subject to the general right to engage in high-level publicity, as detailed at 10.7 above, no Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
11.1.1 on the Supplier becoming aware of any such claim, the Customer is given prompt notice same;
11.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
11.1.3 the Customer is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim referred to in Clause 11, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.3.1 a modification of the Services or Software by anyone other than the Supplier; or
11.3.2 the Customer's use of the Services or Software in a manner contrary to the instructions given to the Customer by the Supplier; or
11.3.3 the Customer's use of the Services or Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.4 The foregoing constitutes the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and/or sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 This Clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
12.1.1 arising under or in connection with this Agreement;
12.1.2 in respect of any use made by the Customer of the Services or any part of them; and
12.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 The Parties expressly acknowledge and agree that the Supplier's automated manipulation of Aggregate Data shall be on a "best efforts" basis and, as a result of the Supplier's not having sight of, or access to, the individual data flows which come together to form the Aggregate Data, the Supplier shall not have any liability, responsibility, or case to answer in the event that the Aggregate Data is not displayed in the Customer's systems as the Parties intend(ed) it to be. Except as expressly and specifically provided in this Agreement:
12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.2.3 Services are provided to the Customer on an "as is" basis.
12.3 Nothing in this Agreement excludes the liability of the Supplier:
12.3.1 for death or personal injury caused by the Supplier's negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to Clause 12.2 and Clause 12.3:
12.4.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
12.4.2 the Supplier's total aggregate liability in contract (including in respect of Clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid during the six (6) months immediately preceding the date on which the claim arose.
13.1 The Customer hereby covenants to the Supplier that it shall not, and it shall procure that its Affiliates shall not, during the period of three (3) years from the Effective Date, solicit the services of, or endeavour to entice away from the Supplier any director, employee or consultant of the Supplier who at the Effective Date or at any time during the period of twelve (12) months prior to the Effective Date was a director, employee or consultant of the Supplier (whether or not such person would commit any breach of his contract of employment or engagement by reason of leaving the service of the Supplier).
14. TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and, other than where a minimum term is agreed between the parties, shall continue until terminated by one or other of the Supplier or the Customer. Where a minimum term is agreed, the Agreement shall last for such term and and, thereafter, shall be automatically renewed for successive periods of one (1) year (each a "Renewal Period"), unless:
14.1.1 either Party notifies the other Party of termination, in writing, at least thirty 30 calendar days before the end of the minimum term agreed or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
14.1.2 otherwise terminated in accordance with the provisions of this Agreement.
14.2 Where a minimum term has been agreed between the Parties, as described in greater detail in clause 14.1 above, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
14.2.1 the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
14.2.2 the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
14.2.3 the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
14.2.4 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
14.2.5 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
14.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
14.2.7 an application is made to court, or an order is made, for the appointment of an examiner, or if a notice of intention to appoint an examiner is given or if an examiner is appointed, over the other Party;
14.2.8 the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed a receiver;
14.2.9 a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
14.2.10 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party's assets and such attachment or process is not discharged within 14 days;
14.2.11 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2.4 to Clause 14.2.10 (inclusive);
14.2.12 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3 Where no minimum term has been agreed between the Parties, as described in more detail in clause 14.1 above, either the Customer or Supplier may terminate this Agreement immediately on notice to the other; and non-payment of Fees due, when arising, may be considered, by the Supplier, as notice of termination by the Customer.
14.4 Irrespective of any other right to terminate under this Agreement, the Customer may terminate this Agreement on immediate effect where the Supplier provides a Charges Notice which details an increase in Fees as against that in effect at the Effective Date, or the last Charges Notice, whichever is later; provided that such intention to terminate is notified to the Supplier within five Business Days of such Charges Notice being forwarded to the Customer.
14.5 The Supplier may suspend the provision of the Services and/or terminate this Agreement at any time on notice to the Customer where: (i) a financial regulator, regulatory agency, or law enforcement agency posts a warning with regard to the Customer: (ii) any governmental, regulatory, or judicial authority directs the Supplier to suspend or terminate this Agreement; (iii) or the Supplier reason to believe that the Customer is engaged in fraud, money laundering, or terrorist financing.
14.6 On termination of this Agreement for any reason:
14.6.1 all licences granted under this Agreement shall immediately terminate;
14.6.2 each Party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other Party;
14.6.3 the Supplier may destroy or otherwise dispose of any of the Aggregate Data in its possession unless the Supplier receives, no later than ten (10) days after the date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Aggregate Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Aggregate Data; and
14.6.4 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
17.1 The Supplier may modify this Agreement, including any documents incorporated into the same by reference, from time to time provided that the Supplier shall first provide notice of such modifications to the Customer. Such notice shall provide an overview of the relevant modifications to the Customer, with such changes being set out in documentary form as against the terms of the Agreement in force prior to such modification taking effect.
17.2 The Supplier shall have no power to make changes of a retroactive nature.
17.3 Where the Supplier exercises such a right to alter the terms of this Agreement, the Customer shall be entitled to terminate the Agreement in accordance with its terms prior to relevant modifications becoming effective.
17.4 Any continued use of the Services by the Customer after the Supplier's notification of any modifications shall be considered acceptance of said modification(s) to the Agreement by the Customer, and the Customer agrees to and acknowledges the same.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
21. ENTIRE AGREEMENT
21.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
21.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
23. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. NOTICES & CONTACT DETAILS
24.1 Any notice required to be given under this Agreement, including with respect to payments, alterations to the Agreement, etc., shall be in writing and shall be delivered by email to the other Party at the address provided by the Customer at the outset of this Agreement, in the case of the Customer; and the address provided on the Supplier's website, in the case of the Supplier, or such other address as may have been notified by that Party for such purposes.
24.2 The Parties shall be entitled to use, and rely on use of, the contact details provided by each other at the outset of this Agreement, until advised of changes thereto in accordance with the terms of this clause 24. For the avoidance of doubt, either Party's communicating to or through an email inbox notified as being associated with the other party at the outset shall, other conditions being adhered to, be considered appropriate notice until such time as the communicating party is advised of an alternate email mailbox, etc.
25. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Republic of Ireland.
Each Party irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).